A March of Liberty: A Constitutional History of the United States - Vol. 1

By Melvin I. Urofsky; Paul Finkelman | Go to book overview

22

The Court and Civil Rights

The Abandonment of the Freedmen • The Civil Rights Cases •
Jim Crow Enthroned • The Treatment of Native Americans •
The Chinese Cases • The Insular Cases • The Incorporation
Theory • Women and the Law • The Court Draws Limits •
The Peonage Cases • A Few Small Steps • Conclusion • For
Further Reading

FREEDOM HAD BEEN the driving force of American law in the first half of the nineteenth century, leading up to the fight to end slavery and the Civil War. However, the meaning of that freedom was often contested. For Southern whites, for example, “freedom” implied the right to own slaves; for African Americans and their white allies, freedom meant an end to bondage. After that great outpouring of energy and creativity to end slavery, the latter decades of the century marked a withdrawal, a time of consolidation rather than advance, and in some areas retreat. The Republican Congresses of the war and Reconstruction era had attempted to write some statutory as well as constitutional safeguards to protect the former slaves, but the Supreme Court nullified nearly all this work. The greatest impact of the Civil Rights Acts and the Fourteenth and Fifteenth Amendments would come nearly a century later in the civil rights struggles of the 1960s.

The Court also seemingly had little interest in expanding the protection of constitutional safeguards over other minorities as well, and in general acquiesced in congressional and presidential initiatives as well as state laws discriminating against Native Americans, Asians, and peoples living in the territories won in the Spanish-American War, as well as against Mormons. After some mid-century reforms, women found little that could be considered hopeful after the war. The suffrage drive had been shunted aside to focus all available energy on abolition and the drive for racial equality, and the effort to secure the vote would not be successfully revivified until the early twentieth century. Both at the state level and in the Supreme Court, judges interpreted the law to reflect the dominant social view that women had few rights and ought to be kept confined in their proper domestic sphere.

The few hopeful signs could be found only when bigotry pushed too far, but even then, the Court reacted slowly and cautiously. In terms of legal and constitutional agen

-479-

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A March of Liberty: A Constitutional History of the United States - Vol. 1
Table of contents

Table of contents

  • Title Page iii
  • For Susan and Byrgen—yet Again v
  • Contents vii
  • Preface xiii
  • 1: From the Old World to the New 1
  • 2: Law in Colonial America 17
  • 3: The Road to Independence 39
  • 4: The Revolutionary Era 61
  • 5: The Crisis of Confederation 80
  • 6: A More Perfect Union 93
  • 7: Launching the Great Experiment 120
  • 8: The Supreme Court: the First Decade 147
  • 9: The Changing Face of the Law 165
  • 10: Adams, Jefferson, and the Courts 181
  • 11: The Marshall Court and National Power 207
  • 12: The Marshall Court and Economic Development 229
  • 13: A Law Made for the Times 248
  • 14: Politics, Nationalism, and Competition 271
  • 15: Jacksonian Democracy 296
  • 16: The Taney Court: Change and Continuity 320
  • 17: The Peculiar Laws of America's Peculiar Institution 337
  • 18: A House Dividing 366
  • 19: The Union Sundered 401
  • 20: The Union Unrestored 429
  • 21: Reconstruction 451
  • 22: The Court and Civil Rights 479
  • Appendixes - The Declaration of Independence 501
  • Articles of Confederation 505
  • Constitution of the United States 511
  • Justices of the U.S. Supreme Court 528
  • Case Index 537
  • Subject Index 542
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